An Apologia regarding the Lawsuit against SSU Officials
“Though we love both the truth and our friends, piety requires us to honor the truth first.”
Aristotle, Nichomachean Ethics, 1096a17
On Nov. 5, 2018, I filed a lawsuit against officials at Shawnee State University for violation of my First Amendment rights to freedom of speech and religion, as well as for other freedoms. The circumstances behind the suit date back to the spring semester of 2018, when a biologically-male student demanded that I address him with female pronouns and titles. Since I disagree with transgender ideology on both philosophical and religious grounds, I explained to the student that I could not comply with his demand, but offered to use his chosen female proper name and avoid referring to him using pronouns and titles.
Initially, the Administration agreed that I could accommodate the student in this way, but the student would not accept this. So the Administration changed course and decided to require me to either use the student’s preferred pronouns and title, or drop all pronouns and titles from my speech in all the classes I teach, which effectively required me to speak English as it has never been spoken in its 1500-year history. I considered this option to be patently ridiculous and practically impossible. As I did not wish to be fired for refusing to call a man a woman, and as I considered the demands of the Administration an egregious assault on freedom, I filed the lawsuit.
The lawsuit, Meriwether vs. Hartop, eventually made its way to the United States Court of Appeals for the Sixth Circuit, where the court ruled unanimously in my favor that the Administration violated my First Amendment rights.[1] One of the most important elements of the Sixth Circuit ruling is that it decisively distinguishes professors from other public employees. In other words, we are not merely spokesmen for the university in the classroom. But the ruling has also been cited by courts outside the Sixth Circuit that were addressing free speech regarding gender identity policy in the public schools. The Virginia Supreme Court[2] sided with a gym teacher suspended for questioning school board policy regarding transgenderism at a public meeting.[3]
On April 14, 2022, the University and I reached a settlement that nullifies the disciplinary action that it took, and agreed that I cannot be disciplined in the future for refusal to employ non-biologically-based titles and pronouns.
Because of the enormous controversy surrounding this issue, it is easy for those who disagree with me to miss that this decision represents an enormous win for all of us. No college professor at any state university can be required to speak in ways that endorse the university’s preferred ideology.
What follows is an apologia, an explanation and defense of my filing the lawsuit, which I know has brought considerable consternation and perhaps resentment from some, although many faculty, staff, current and former students, and members of the community have been very supportive. Unfortunately, we are a divided university, just as we are a divided society, and the issues that caused me to file the lawsuit are at the very heart of that division.
For ease of understanding, I begin each section with what I believe are the questions most people have about the reasons for the stance I took.
* * *
Why won’t you be kind and respectful, and call students what they wish to be called?
First, I am in complete agreement that a state university faculty member should have the freedom to recognize transgenderism. I simply exercised the same right as someone who believes that transgenderism is based upon a faulty and destructive view of the human person, one that separates body from mind, as well as a violation of the natural order God has instituted.
But what about simply being kind and respectful to my students? Consider: Can a Darwinist natural science professor be kind and respectful to creationists (and vice versa)? Can feminists be kind and respectful to men and women who believe in complementarianism? Can Progressives be kind and respectful to Trump supporters in their classes? I would certainly hope so, for the simple reason that showing kindness and respect does not preclude disagreement. Indeed, much of the negative commentary regarding my lawsuit seems to equate disagreement with disrespect. It is hard to imagine anything more detrimental to honest dialogue than equating the two. This tendency to equate honest disagreement with being rude or insensitive is deadly to the public university as a marketplace of ideas, and has led to what many observers believe is a silencing of opposition across higher education. Being respectful does not require me to adopt terminology that validates a worldview I do not hold and believe is harmful.
But pronouns and titles are merely “honorific,” that is, they are forms of address denoting respect or status. By refusing to honor transgender students’ request to be referred to by their chosen honorific, you’re disrespecting them.
Traditionally, an “honorific” has been a form of address to one’s social superior, as in “Your Excellency,” or to a person with a professional degree, such as “Dr.” or “Judge.” Mr. or Ms. aren’t honorifics. And pronouns have certainly never been considered honorifics. But this novel usage of the term could at best apply only to Mr. and Ms. Webster defines “he” as “that male one who is neither speaker nor hearer,” and the same for “she.” I’m afraid there’s no getting around it: When I refer to a student as “Mr.” or “he” or “Ms.” or “she,” I am conveying what I believe that person’s sex to be. So by using non-biological pronouns or titles, I am indicating to students that I believe sex is subject to choice rather than being biologically determined at conception, which is precisely the view that I reject. Pronoun and title usage is not an innocuous formality; it is substantive communication. And this is precisely what the Sixth Circuit ruled.
In fact, when I asked the Administration whether I could be allowed to insert a qualification into my syllabus explaining that I only use titles and pronouns as indicating what students want to be called, and not what I believe, they rejected it. Why? Because I would be denying that gender identity is something people choose for themselves, and thus I would conflict with the (now-)official ideology at SSU, and this could not be permitted, and least until the Sixth Circuit issued its ruling.
Don’t transgender students require a special degree of sensitivity and compassion?
Some will say you can’t simply equate transgender persons to those who hold different political commitments or belief systems. Transgender persons often undergo enormous personal struggles, and they will continue to struggle with serious familial, vocational, and social obstacles, in large part because they are going directly against traditional gender roles and social expectations that you endorse by refusing to refer to them by their chosen gender. These people need our support and compassion, and what you’re doing is denying them critical assistance in a very difficult journey.
I certainly don’t disagree that many who suffer from gender dysphoria have significant struggles, and deserve appropriate expressions of compassion. All our students deserve to be treated with dignity and respect regardless of whether we agree with them or their choices. But here we must get into the details of transgenderism and its consequences, because being kind and compassionate requires that we do so with understanding.
Some view gender dysphoria as perfectly healthy and liberating because they believe gender is always and only a social construct. It is this “liberation” view that I think is the assumption behind SSU’s “gender identity” policy, and the disciplinary action it imposed on me. Others hold that transgenderism exacerbates a dangerous and unhealthy division between the physical body and mental states, with serious medical, psychological, social, and cultural ramifications that are unpredictable and deeply troubling. Paul McHugh, a distinguished professor at Johns Hopkins, calls transgenderism a “pathogenic meme” that spreads throughout a population and leaves casualties in its wake.[4] Some of you, of course, take the “liberation” view, whereas I and many of my supporters take the “pathogenic meme” view. Within this view, some hold that gender dysphoria is a type of disability, similar in many ways to an eating disorder or body integrity dysphoria, i.e., desire to have a healthy limb amputated.[5] I would think that the public university is precisely the place where both sides of this question must be tolerated, which unfortunately did not happen at SSU.
For the sake of argument, let’s assume the pathogenic meme view is correct. Here the material question is whether calling a person by his or her preferred non-biological pronoun helps or hurts the person in question. In cases of body integrity dysphoria in which a person believes he should have his otherwise healthy arm or leg removed, or an eating disorder, where a person believes he is overweight, I cannot imagine that dishonestly agreeing with the person about his or her body is the right thing to do. In fact, it is not simply dishonest, it is cruel. And when one considers the utterly traumatic and irreversible physical consequences of hormone treatments or transgender surgery, it is difficult to accept at face value the claim that those who affirm and thus encourage it are the ones being kind. A surgically-created vagina is nothing more than a wound which the body seeks to heal, and will “require regular, painful attention” for the life of the patient, with no guarantee that the patient will be “happier” as a result.[6] People who believe that what they are is something completely in contradiction to their genes, genitalia, ovaries, gonads, etc., may do irreversible damage to their bodies through chemical treatments or surgery, including to their ability to procreate. We should not assume that the pedagogically responsible thing to do is to indulge a student’s potentially destructive self-understanding. I would seriously question whether in just any context, reinforcing body dysphoria is a good idea, whether we’re talking about an eating disorder such as bulimia or obesity, or body integrity disorder more generally, or transgenderism, specifically. If the pathogenic meme view is correct, kindness and respect would dictate that I be truthful – with tact, compassion, and humility – but truthful nevertheless.
Even if it isn’t disrespectful or unkind to disagree with someone, what harm does it do to indulge these few students? Aren’t you just making a mountain out of a molehill?
While the issue of pronoun and title usage may seem petty at first glance, it is a manifestation of a grave intellectual error that has far-reaching consequences. First, the idea that it really doesn’t matter that much how college professors interact with students is not only grossly inconsistent with current expectations (I shouldn’t invent and employ insulting nicknames for my students and claim it doesn’t matter), but also to greatly underestimate our influence upon students for good or ill. But what then are the supposed intellectual stakes for titles and pronouns? What difference does indulging transgender identity make?
For those who question transgenderism, it is the reductio ad absurdum of modernity’s tendency to completely sever the integral connection of mind and body. Once subjective mental states and feelings rather than biology dictate reality, virtually any identity is possible, and indeed, on the view being enforced at SSU, must be affirmed. The separation of mind from body that transgenderism assumes affects virtually every area of public controversy, including abortion (the fetus is only a part of the woman’s body, not her mind, so she can regard it as a stranger or parasite[7]), involuntary euthanasia (once the conscious mind is no longer functioning, the body can be electively terminated), and marriage (marriage may be based upon purely subjective emotions having nothing to do with biological and reproductive fittingness, thus opening the door to same-sex marriage, and more recently, polygamous or even incestuous marriage[8]).
The legal implications of recognizing transgenderism as a perfectly healthy and legitimate expression of gender identity (the “liberation” view) will not suddenly stop with familiar concerns that girls and women will be unable to protect their physical privacy from men in public bathrooms.[9] Since on transgender ideology, there is no way to test the sincerity of men claiming to be women, there are now reports of women being sexually assaulted in showers by men claiming to be women,[10] as well as convicted rapists supposedly transitioning to women, and committing acts of sexual assault after transfer to women’s prisons.[11] The economic consequences for businesses that cater to women could be catastrophic.[12] We are seeing girls as young as 13 being scheduled for mastectomies,[13] though some will come to regret this momentous, irreversible decision to transition to another gender.[14]
According to currents within transgender theory, a “man” identifying as a “woman” is increasingly antiquated. Many now question the concept of being male or female across-the-board. “Women’s rights,” or “feminism” will no longer make sense as a set of beliefs. We are living in a time in which, according to transgender ideology, a man can bear a child. “Women’s sports” is itself hopelessly binary. We already see biological males competing against biological women, and of course, winning handily.[15] What exactly will this do to Title IX? Does the Administration have a plan for how to house biological men who claim to be women, and desire a female roommate? What if a biological male decides he is a woman, tries out for Women’s Volleyball or Basketball, and demands a scholarship that would rob a woman from receiving it? So, perhaps inadvertently, the SSU Administration officially endorsed perhaps the most potent and destructive error in modern culture, and wished to punish those who dared not uphold it. Plainly, there is vastly more at stake here than pronouns and titles.
I cannot endorse this ideology in any fashion for scientific, philosophical, ethical, political, and indeed theological reasons. The use of titles and pronouns – which will not be limited to the traditional ones, but logically will extend to any pronoun a student demands that we use at any time — constitutes endorsement of the ideology, as the Sixth Circuit ruled. And though we teach at a university that is supposedly a public institution, the SSU Administration held that my views can no longer be accommodated, though they are held by almost half the country,[16] and likely would have been by a majority of the faculty even 15-20 years ago.
You say that your victory in the lawsuit is a victory for all of us. How so?
As I mentioned, the Sixth Circuit’s ruling is not just a victory for me; it is a victory for all professors at public institutions in Ohio, Michigan, Kentucky, and Tennessee. Why?
The University’s legal position rested on a 2006 Supreme Court case, Garcetti v. Ceballos. There, the Supreme Court ruled that when public employees speak as part of their official duties, they do not enjoy any First Amendment protections. So if they are punished for anything they say as part of those “official duties,” they can try to sue, but they will lose. Obviously, this gives government employers considerable power.
The University argued that this principle governed my case. Had they succeeded, no professors would have free speech rights for anything we say on the job. This includes not just the classroom, but it could even empower universities to punish professors for things they say in their published scholarship, which is indeed already happening at some universities.[17] The potential for chilling academic discussions on all topics is readily apparent—and not limited to me.
The Sixth Circuit rejected the University’s position after reviewing Supreme Court cases involving faculty, as well as related rulings from the Fourth, Fifth, and Ninth Circuits. It concluded:
If professors lacked free-speech protections when teaching, a university would wield alarming power to compel ideological conformity. A university president could require a pacifist to declare that war is just, a civil rights icon to condemn the Freedom Riders, a believer to deny the existence of God, or a Soviet émigré to address his students as “comrades.” That cannot be.
Because of this ruling in my favor, the First Amendment protections for all faculty members are now stronger, more robust, and far clearer. And that is something that should make all of us—regardless of our disagreements—very thankful.
My hope is that in the coming months and years, more dialogue on these issues will be possible, perhaps in the form of panels, invited speakers, and public discussions. These are what make the college experience something more than job-and-career training. But before we can do this, we must be clear on the scope of First Amendment protections for free speech and religious freedom. The lawsuit has made it possible for me to be here for these discussions, and to do so without compromise.
Nicholas K. Meriwether is Professor of Philosophy at Shawnee State University in Portsmouth, OH.
Related Links
Podcast: “Cranky is the New Winsome”
“Talk about an Awkward Term” by Calvin Goligher
"Courageous Christian Sexuality" by William Boekestein
Strange New World: How Thinkers and Activists Redefined Identity and Sparked the Sexual Revolution by Carl Trueman
Knowing Sin: Seeing a Neglected Doctrine Through the Eyes of the Puritans by Mark Jones
Notes
[1] https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0071p-06.pdf
[2] https://adfmedia.org/press-release/va-supreme-court-loudoun-county-publi...
[3] Since I wrote the apologia, in a case very similar to mine, a Kansas teacher was required by her school district to refer to her students by their preferred names and pronouns, but she refused, and was suspended.[3] However, the US District Court ruled that her First Amendment freedom of speech claim was likely to prevail, and the school district settled with her, awarding her $95,000.00. https://www.cnn.com/2022/09/01/us/kansas-teacher-suspend-settle/index.html
[4] https://www.thepublicdiscourse.com/2015/06/15145/
[5] Researchers are now describing what is called “Rapid-Onset Gender Dysphoria” to describe the phenomenon of gender dysphoria spreading through a social group. See: https://www.sciencedaily.com/releases/2018/08/180822150809.htm.
[6] https://www.nytimes.com/2018/11/24/opinion/sunday/vaginoplasty-transgender-medicine.html.
[7] See Judith Jarvis Thomson, “A Defense of Abortion” https://spot.colorado.edu/~heathwoo/Phil160,Fall02/thomson.htm.
[8] https://www.psychologytoday.com/us/blog/darwin-eternity/201108/are-peopl....
[9] https://www.independent.co.uk/life-style/women/sexual-assault-unisex-cha...
[10] https://abc30.com/homeless-women-harassed-in-shower-lawsuit-says/3514544/
[11] https://www.theguardian.com/uk-news/2018/sep/09/sexual-assaults-in-womens-prison-reignite-debate-over-transgender-inmates-karen-white On the current understanding of transgenderism, since the physical body is utterly irrelevant to gender, it isn’t necessary or required for a transgender (biologically male) woman to present as such. A biological male can claim he is a woman and walk into a women’s dressing room that day without surgery, eyeliner, long hair, or any feminine clothing. If he is genderqueer, he can alternate between the men’s and women’s dressing rooms depending solely on his feelings on a given day. Regarding the incident alluded to here, a lesbian feminist, Julia Beck, was removed from the Baltimore LGBTQ Commission for refusing to refer to the rapist with female pronouns. https://www.dailymail.co.uk/news/article-6644801/Prominent-attorney-slam....
[12] In a recent case in California, a man claiming to be transgender began using the dressing room at a gym that serves primarily orthodox Jewish women and, without surgery of any kind, proceeded to disrobe in front of them. When asked, he refused to use a private bathroom because, as a “woman,” he has a right to undress with other women. Of course, this has resulted in many of the women canceling their memberships, placing the sustainability of the business in jeopardy. https://www.nationalreview.com/2018/11/transgender-politics-sympathy-can...
[13] https://www.youtube.com/watch?v=2TrNE8a53dI&feature=youtu.be
[14] https://www.theatlantic.com/magazine/archive/2018/07/when-a-child-says-s...
[15] https://www.wnd.com/2017/03/female-athletes-crushed-by-women-who-were-once-men/;https://www.espn.com/college-sports/story/_/id/33529775/amid-protests-pennsylvania-swimmer-lia-thomas-becomes-first-known-transgender-athlete-win-division-national-championship. Many states have either banned transgender women (biological men) from competing against biological women, or are considering doing so: https://www.newsnationnow.com/us-news/here-are-the-states-banning-transg....
[16] https://today.yougov.com/topics/lifestyle/articles-reports/2021/09/23/am...
[17] https://reason.com/volokh/2022/01/19/this-case-stems-from-the-suppressio...
